Federal Judge Thomas Penfield Jackson had harsh words yesterday for a Blue Cross HMO accused of abandoning a Washington teenager during her arduous recovery from a 1992 car crash and coma.
During closing arguments in a long-running lawsuit, Jackson repeatedly interrupted an attorney for the CapitalCare HMO to say that CapitalCare never developed a rehabilitation plan for Alistaire Moore, who was an invalid when she emerged from the coma.
"Mr. Steele, the parents asked over and over and over again" for such a plan, the judge in the non-jury case told defense attorney Charles J. Steele.
Steele argued that Alistaire's parents, William and Judith Moore, initially chose to coordinate Alistaire's care on their own rather than follow the HMO's rules. It was only months after Alistaire left the hospital that her father asked the HMO to draw up a plan the health plan would agree to cover, Steele said.
But the judge seemed unimpressed.
"Why did they [the HMO] have to be asked to provide something that they are obliged to do?" Jackson said.
Alistaire, then 15, was on her way from her home in Northwest Washington to a New Hampshire prep school in the fall of 1992 when her chauffeur-driven car veered off the highway and hit a tree. She spent more than a month in a coma and emerged unable to walk, talk, or perform the most basic functions. But she eventually recovered enough to go on to college and live a semblance of a normal life.
Her parents attribute her progress in part to an elaborate course of rehabilitation that included many things they provided or paid for on their own, such as tutoring in physics, math and French; and two years at Phillips Exeter Academy, an elite private school. A consultant for the Moores estimated that such unreimbursed expenses totaled $433,684.88.
Earlier, the Moores were seeking to recoup the $433,684.88 from CapitalCare. But yesterday, their attorney, Martin H. Freeman, raised the stakes, asking the judge to "send a message" and make the HMO pay more than $2 million. Freeman argued that the health plan was contractually obligated to provide services that would have cost much more than the care the Moores arranged, and he said the Moores were legally entitled to the larger sum.
Steele said the health plan paid the many bills it was responsible for covering.
In April 1993, after a series of acrimonious exchanges with the health plan, Bill Moore wrote two letters asking Alistaire's primary care doctor, Deborah B. Goldberg, to arrange a treatment plan. At that point, Steele said, Golberg attempted to refer Alistaire to another doctor who specialized in rehabilitation.
But the judge saw it differently.
"Dr. Goldberg never recommended anybody," Jackson said.
Jackson is considering the case under the Employee Retirement Income Security Act (ERISA), a federal law that blocks consumers from suing employer-sponsored health plans for punitive damages, pain and suffering, lost income and the like. Jackson originally denied the Moores' request for a jury trial in D.C. Superior Court, where they could have claimed much more extensive damages.
Expressing doubts about his earlier ruling, Jackson last spring tried to get the U.S. Circuit Court of Appeals for the District of Columbia to resolve the jurisdictional question before the case proceeded to closing arguments, but the appeals court refused.